We have great respect
for judges. We have even greater respect for law. When judges behave lawlessly,
it is the law that must be honored, not lawless judges.
The Supreme Court is
supreme in the federal judicial system. But the justices are not supreme over
the other branches of government. And they are certainly not supreme over the
Constitution.
In Obergefell v.
Hodges, five justices, without the slightest warrant in the text, logic,
structure, or historical understanding of the Constitution presumed to declare
unconstitutional the marriage laws of states that maintain the historic and
sound understanding of marriage as the conjugal union of husband and wife.
Obergefell is not “the
law of the land.” It has no more claim to that status than Dred Scott v.
Sandford had when President Abraham Lincoln condemned that pro-slavery decision
as an offense against the very Constitution that the Supreme Court justices
responsible for that atrocious ruling purported to be upholding.
Lincoln warned that
for the people and their elected leaders to treat unconstitutional decisions of
the Supreme Court as creating a binding rule on anyone other than the parties
to the particular case would be for “the people to cease to be their own
rulers, having effectively abandoned their government into the hands of that
eminent tribunal.”
Because we stand with
President Lincoln against judicial despotism, we also stand with these distinguished legal scholars
who are calling on officeholders to reject Obergefell as an unconstitutional
effort to usurp the authority vested by the Constitution in the people and
their representatives. At the same time, we stand with the four dissenting
Supreme Court justices in Obergefell who rightly noted that the judicially
imposed redefinition of marriage is a judicial power grab that will — as
Justice Alito wrote in his dissent — “vilify Americans who are unwilling to
assent to the new orthodoxy.”
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